Sunday, November 29, 2009

A spear in the leg before going to jail

Aboriginal elders in the Northern Territory are pressing for the legitimization of their traditional laws and punishments, which they envision as running in parallel to Australian law. The appropriateness of Aboriginal customs in modern Australian society has long been debated with many non-Aborigines favouring at least some effort being made to accommodate indigenous desires. If more than lip service is to be paid to Aborigines there are major obstacles that need to be overcome, however.

Aborigines want to be able to punish crimes committed within their communities, that is, crimes committed by Aborigines against other Aborigines. According to elder Billy Bunter, failure to deal with local crimes locally causes festering problems:

Mr Bunter wants the Government to officially recognise customary law, including the system of traditional punishment often known as pay back.

He wants the courts to grant bail to Indigenous offenders so they can face traditional punishment before going to jail.

He says the failure to carry out pay back on the offender means the matter is never settled according to Aboriginal law. As a result, he says, revenge attacks between the families of the victim and the accused ensue.

"What's really affecting our people is punishment, what we call pay back," he said.

"[It is] leaving... a great big problem in the community. Two families start fighting - then a killing is going to take place for many years to come."

The punishments Billy Bunter and others in the film want recognised range from public shaming to spearing in the leg for the most serious crimes.

In short, pay back punishments provide closure for all parties concerned.

There is nothing at all unreasonable in the Aboriginal community's expectation that local matters should be dealt with locally prior to being ultimately disposed of by the judicial system. It's not like serious Aboriginal offenders are going to be lynched - leg-spearing is meant to punish, not kill (although I recall that misplaced spears hitting the femoral artery have caused deaths through blood loss). Establishing parallel legal systems is no mean feat, however, especially when international obligations must be considered.

No matter what happens, spearing as punishment will never be recognised by the legal system as appropriate. Even if conducted in strictly controlled circumstances a spearing would likely result in arrest with serious charges being laid. Changing relevant Australian law would pointless because spearing would still violate internationally recognised prohibitions of punishments which inflict physical injury. It could even be argued that public shaming is designed to inflict psychological harm and is therefore tantamount to torture (see Abu Ghraib).

It would be great if Aborigines had greater control over law enforcement and punishment within their own communities but it looks very much like the modern multi-tiered legal system is unable to accommodate their ancient customs, especially when the penalties involved are seen by some as cruel and unusual. Like it or not, Aborigines will remain subject to white man law.

But should a miracle happen and Aborigines be granted a parallel legal system based on customary law, another problem will arise: other groups claiming to live their lives guided by customary law would soon demand a degree of legal autonomy. Sharia law, anyone?


Anonymous Dan Lewis said...

There is nothing wrong with ethnic groups trying to resolve matters 'internally', provided (and this is the important bit) it falls within the laws of the land rather than as a replacement for them, and provided it applies only to people who voluntarily submit to it, rather than trying to govern everybody.

The Jewish Beth Din is a good example. Sharia is an example of the opposite.

Having matters settled by a religious court is similar to businesses agreeing to have commercial disputes dealt with by an arbitrator such as the Australian Commercial Disputes Centre.

As long as both parties agree to it (and there's no coercion) I'm okay with it. Again, Sharia allows for coercion of females so it doesn't apply.

I can't however see how spearing someone in the leg would ever be consistent with Australian law.

Mark Steyn's observations about Suttee are also relevant.

10:19 AM  

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